Stream Protection Rule

On February 16, 2017, President Donald J. Trump signed H.J. Res. 38, which disapproved the rule known as the Stream Protection Rule, published at 81 FR 93066-93445 (Dec. 20, 2016). The Congressional Review Act, 5 U.S.C. 801 et seq., states that “[a]ny rule that takes effect and later is made of no force or effect by enactment of a joint resolution under section 802 shall be treated as though such rule had never taken effect." 5 U.S.C. 801(f). Therefore, the regulations reverted to those that were in effect on January 18, 2017, which is the day before the Stream Protection Rule originally became effective. Through publication of a Federal Register notice on November 17, 2017, OSMRE is removing the text of the Stream Protection Rule from the Code of Federal Regulations and restoring the text of the regulations as they existed on January 18, 2017.

The nullification of the Stream Protection Rule, in tum, nullified both the December 16, 2016, Programmatic Biological Opinion and Conference Opinion on the Office of Surface Mining Reclamation and Enforcement's Regulatory Program as Modified by the Issuance and Implementation of the Final Regulation, which analyzed the effects of the SPR, and the related 2016 Memorandum of Understanding between OSMRE and the U.S. Fish and Wildlife Service. As a result, OSMRE will be reinitiating formal programmatic consultation with the Service, as provided for under Section 7(a)(2) of the Endangered Species Act, on OSMRE's implementation of Title V of the Surface Mining Control and Reclamation Act. The purpose of this action is to obtain a new programmatic biological opinion based upon the existing regulatory program. Until the formal Section 7 process is completed, State regulatory programs may continue to rely on the 1996 Biological Opinion and Conference Report (1996 BiOp) and the 1996 Incidental Take Statement (ITS) for the exemption of take. In addition, while the reinitiated consultation is underway, OSMRE has developed interim guidance for the state regulatory authorities to ensure that all appropriate regulations, the requirements from the 1996 BiOp, and the Terms and Conditions listed in the Incidental Take Statement associated with the 1996 BiOp are followed.